U.S. v. Levy, 91-1002

• Decision Date: 24 February 1992
• Docket Number: No. 91-1002,91-1002
• Citation: 955 F.2d 1098
• Parties: 34 Fed. R. Evid. Serv. 1408 UNITED STATES of America, Plaintiff-Appellee, v. Robert A. LEVY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1098

955 F.2d 1098

34 Fed. R. Evid. Serv. 1408

UNITED STATES of America, Plaintiff-Appellee, v. Robert A. LEVY, Defendant-Appellant.

No. 91-1002.

United States Court of Appeals, Seventh Circuit.

Argued June 14, 1991.

Decided Jan. 30, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 24, 1992.

Jeffrey Anderson, Asst. U.S. Atty. Madison, Wis. (argued), for plaintiff-appellee.

Stephen J. Eisenberg, Madison, Wis. (argued), for defendant-appellant.

Before POSNER, MANION and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted Robert A. Levy of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and one count of aiding and abetting in the possession and distribution of cocaine in violation of 18 U.S.C. § 2. Pursuant to the Sentencing Guidelines, the district court sentenced him to two concurrent 120 month terms of imprisonment, to be followed by an eight-year period of supervised release. Levy now appeals both his conviction and sentence. We affirm.

I.

Robert Levy and his wife, Hyacinth, owned and operated M & R Records, a retail music and novelty store located in Waukegan, Illinois. Based on information obtained from suspected cocaine distributor Randall Wagner, several federal and state law enforcement agents visited Mr. Levy on June 26, 1990 to question him about his involvement in a cocaine distribution scheme with Wagner, and to seek his cooperation in other drug-dealing investigations. At the time, Mr. Levy was on parole for a 1987 Illinois drug conviction. The agents had no warrant for Levy's arrest, but did possess a grand jury subpoena directing production of his business records. The agents also brought along a tape recording of an attempted cocaine transaction between Levy and Wagner. ¹ In addition the agents carried with them copies of four money orders and a canceled check payable to Levy and drawn by Wagner.

The agents entered Levy's store at approximately 8:30 p.m. They approached the defendant, his wife and an employee and asked if Robert Levy was there. Robert Levy initially denied his identity because he thought the agents were process servers or bill collectors. Hyacinth Levy did identify herself as Robert Levy's wife. One of the agents then asked Mrs. Levy if he could speak to her outside. Once outside, the agents identified themselves and explained that they wanted to talk to her husband about his drug activities and obtain his cooperation in their investigation. They also told her they were not there to arrest anyone. In the meantime, Robert Levy had acknowledged his identity when the agents confronted him with his photograph. The agents then displayed their identification. At this point, Mrs. Levy joined her husband and the employee in the store. The agents told Robert Levy that they wished to speak with him privately. Mr. Levy declined, stating that he had no secrets to keep from his wife and friend. Mrs. Levy and the employee then remained in the store with Mr. Levy. The agents explained to Mr. Levy that he was not under arrest, that he would not be arrested that night, that he was under no obligation to speak with them, and that he was free to contact an attorney if he so desired. The agents informed Mr. Levy that they wanted to gain his cooperation in their investigation and that his cooperation would be reported to the United States Attorney. After the agents explained the purpose of their visit, Mr. Levy agreed to talk with them. The agents then proceeded to question Mr. Levy about his drug transactions with Wagner.

During the questioning, the agents played the tapes of the April 20, 1989 meeting with Wagner, and also showed Levy the copies of the four money orders and the check. Having been apprised of the seriousness of his predicament, Mr. Levy indicated that he would cooperate. He then admitted, among other things, that he had sold between six and eight pounds of cocaine between July 1, 1988 and March 21, 1989, and that the returned check and money orders were payments for cocaine. The interview was conducted in normal conversational tones in a relaxed atmosphere with both Mrs. Levy and the employee present throughout most of the interview. At the conclusion of the questioning, Mr. Levy was given business cards by two of the agents with the understanding that Mr. Levy would be getting in touch with them in a few days. The agents then departed at approximately 9:15 p.m.

On July 11, 1990, a grand jury returned a two-count indictment against Levy, charging him with: (1) conspiracy "by agreeing to knowingly and intentionally distribute cocaine on or about July 1, 1988, until on or about March 21, 1989," in violation of 21 U.S.C. § 846; and (2) aiding and abetting "in possession with intent to distribute ... cocaine," in violation of 18 U.S.C. § 2.

Before trial, Levy moved in limine that evidence of the April 20, 1989 "sting" transaction be held inadmissible, on the grounds that it did not qualify as prior bad act evidence within the meaning of Federal Rule of Evidence 404(b). He also moved to suppress the incriminating statements he made during his questioning by the drug enforcement agents on June 26, 1990, claiming that he made the statements involuntarily and without receiving the Miranda warnings. The court denied both motions. Thereafter on October 24, 1990, the government, pursuant to 21 U.S.C. § 851(a), notified Levy of its intent to seek enhancement of his sentence based on Levy's prior Illinois drug dealing conviction. Also included, in addition to the statutorily required notice, was the possibility of enhancement of any sentence based on the amount of cocaine involved (more than 500 grams). See 21 U.S.C. § 841(b)(1)(B)(ii)(II). The case proceeded to trial on October 29, 1990. Two days later on October 31, 1990 the jury returned a verdict of guilty on both counts in the indictment.

At sentencing, on December 21, 1990, the court concluded that Levy had delivered 1,288 grams of cocaine to Wagner, basing its calculations primarily on the statements Levy made during his interview with the drug agents on June 26, 1990. Accordingly, Levy was assigned an offense level of 28 under the Sentencing Guidelines. However, his Guidelines range for incarceration of 97 to 121 months was altered because of the ten-year mandatory minimum which the court determined should be imposed pursuant to the sentencing enhancement provision in 21 U.S.C. § 841(b)(1)(B)(ii)(II). As a result, Levy was sentenced at the mandatory minimum--120 months on each count to run concurrently--with an eight year period of supervised release. This appeal followed.

II. Evidence of Defendant's Prior Misconduct

Levy initially contends that the district court committed reversible error by admitting evidence of an attempted cocaine transaction with Wagner on April 20, 1989. The district court ruled that although the transaction fell through, it was nonetheless admissible under Rule 404(b) to show Levy's intent to distribute cocaine as charged in the indictment. ² Levy now challenges this ruling on three grounds: (1) the video and audio tapes of the April 20, 1989 conversation do not prove his intent to distribute cocaine because the transaction was never consummated; (2) the attempted transaction was not sufficiently similar to the crimes charged; and (3) even if the transaction was similar to the crime charged, the tapes were not probative of Levy's identity and would therefore unduly prejudice his defense. In addition, Levy asserts that the evidence of the April 20, 1989 conversation should not have been admitted because it was merely cumulative within the meaning of Federal Rule of Evidence 403. Both arguments fail.

We have frequently discussed the standard which district courts should employ when ruling on the admissibility of prior bad acts under Rule 404(b). See e.g., United States v. Zapata, 871 F.2d 616 (7th Cir.1989); United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); United States v. Shackleford, 738 F.2d 776 (7th Cir.1984). As we explained in United States v. Zapata,

To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

871 F.2d at 620. See also United States v. Manganellis, 864 F.2d 528, 531-32 (7th Cir.1988); United States v. Rollins, 862 F.2d 1282, 1294 (7th Cir.1988), cert. denied, 490 U.S. 1074, 109 S.Ct. 2084, 104 L.Ed.2d 648 (1989). In reviewing decisions to admit evidence of prior bad acts based on this four-pronged analysis, the district court will only be reversed upon a showing that the court committed a clear abuse of discretion. United States v. Montoya, 891 F.2d 1273, 1284 (7th Cir.1989); United States v. Zapata, 871 F.2d at 621; United States v. Harrod, 856 F.2d 996, 999 (7th Cir.1988).

Here, the district court did not abuse its discretion in admitting the evidence of Levy's attempted cocaine transaction on April 20, 1989. After applying the four-pronged Zapata test for evaluating Rule 404(b) motions, the district court concluded that the evidence clearly established Levy's intent to distribute cocaine. As the district court noted, the tapes and their accompanying testimony illustrate that Levy and Wagner spent a considerable time negotiating the time of delivery and payment for the proposed cocaine purchase, and that Levy repeatedly indicated that he was willing to deliver the cocaine to Wagner if Wagner first "fronted" payment. ³ Moreover, there is no question that the attempted transaction was...